WND EXCLUSIVE

Gay 'marriage' heading for Supreme Court

'Most important human institution shouldn't be overthrown on the demands of Hollywood'

Bob Unruh joined WND in 2006 after nearly three decades with the Associated Press, as well as several Upper Midwest newspapers, where he covered everything from legislative battles and sports to tornadoes and homicidal survivalists. He is also a photographer whose scenic work has been used commercially.

Attorneys defending traditional marriage confirmed today they will petition the U.S. Supreme Court to review a decision left standing by the 9th U.S. Circuit Court of Appeals, the most overturned federal appeals court.

The full court of the 9th Circuit announced it would not review a ruling from a three-member panel that voted 2-1 to overturn a voter-approved constitutional amendment in California limiting marriage to one man and one women

The fight dates back years. Homosexuals had sued to obtain a court order demanding that the state allow same-sex couples to marry. In early in 2008, the state Supreme Court granted their request, although one justice issued a dire warning against the decision.

The passage of Proposition 8 nullified the court’s decision only months later. Homosexual advocates then went to federal court and obtained a favorable ruling from a federal judge who later revealed he was in a same-sex relationship. The 9th Circuit decision affirmed the ruling.

However, if the decision stands, it could be used to justify polygamy – or worse, according to one dissenting California Supreme Court justice.

It was Justice Marvin Baxter, who dissented when his court created same-sex “marriage” for the state.

“The bans on incestuous and polygamous marriages are ancient and deeprooted, and, as the majority suggests, they are supported by strong considerations of social policy,” he wrote at the time. “Our society abhors such relationships, and the notion that our laws could not forever prohibit them seems preposterous.

“Yet here, the majority overturns, in abrupt fashion, an initiative statute confirming the equally deeprooted assumption that marriage is a union of partners of the opposite sex. The majority does so by relying on its own assessment of contemporary community values, and by inserting in our Constitution an expanded definition of the right to marry that contravenes express statutory law.”

His warning?

“Who can say that, in 10, 15 or 20 years, an activist court might not rely on the majority’s analysis to conclude, on the basis of a perceived evolution in community values, that the laws prohibiting polygamous and incestuous marriages were no longer constitutionally justified?” Baxter wrote.

After the 9th Circuit decision was announced today, the Alliance Defense Fund, which is part of the legal team working for the ProtectMarriage.com campaign, confirmed the petition will be filed with the U.S. Supreme Court.

“Marriage is a universal good that has been honored by diverse cultures and faiths for the entire history of Western civilization,” said ADF Senior Counsel Brian Raum. “The ProtectMarriage.com legal team looks forward to standing before the U.S. Supreme Court on behalf of the people’s right to preserve the fundamental building block of civilization, especially since the dissent accompanying today’s decision strongly supports our arguments. The democratic process and the most important human institution – marriage – shouldn’t be overthrown based on the demands of Hollywood activists.”

Three judges on the 9th Circuit today dissented from the order denying a rehearing, Diarmuid O’Scannlain, Jay Bybee and Carlos Bea.

They also warned of the consequences of the court’s action.

“A few weeks ago, subsequent to oral argument in this case, the president of the United States ignited a media firestorm by announcing that he supports ssame-sex marriage as a policy matter. Drawing less attention, however, were his comments that the Constitution left this matter to the states and that ‘one of the things that [he]‘d like to see is – that [the] conversation continue in a respectful way.’”

The dissent continued: “Today our court has silenced any such respectful conversation. Based on a two-judge majority’s gross misapplication of Romer v. Evans … we have now declared that animus must have been the only conceivable motivation for a sovereign state to have remained committed to a definition of marriage that has existed for millennia. … Even worse, we have overruled the will of seven million California Proposition 8 voters based on a reading of Romer that would be unrecognizable to the justices who joined it, to those who dissented from it, and to the judges from sister circuits who have since interpreted it.

“We should not have so roundly trumped California’s democratic process without at least discussing this unparalleled decision as an en banc court.”

Lead counsel Charles J. Cooper of the Cooper & Kirk law firm explained that the Supreme Court “has made it perfectly clear that marriage is constitutional as a matter of state public policy.”

“We’re pleased to petition the court to hear this case,” he said. “The lower court opinions were little more than an attack on the character and judgment of millions of Californians, and those decisions essentially ignored all relevant Supreme Court and appellate court precedent. We are hopeful and confident that the Supreme Court will review the 9th Circuit’s decision.”

At the time of the ruling from the three-judge panel earlier this year striking down the constitutional definition of marriage as being between one man and one woman, the appeals court upheld the district court decision by Judge Vaughn Walker, a homosexual who was in a position to benefit from his own decision.

At that time Jimmy Carter-appointee Stephen Reinhardt and Bill Clinton-appointee Michael Hawkins joined in the majority opinion. Randy Smith, appointed by George W. Bush, dissented.

The two judges said, “Although the Constitution permits communities to enact most laws they believe to be desirable, it requires that there be at least a legitimate reason for the passage of a law that treats different classes of people differently. There was no such reason [for Proposition 8].”

Voters in the state with a 52 percent majority adopted Proposition 8 in 2008. The vote came only months after the state Supreme Court decided to impose same-sex “marriage” by killing state statutes that limited marriage to a man and a woman.

While Gov. Jerry Brown applauded the “wisdom” of the decision, longtime pro-family leader Randy Thomasson of SaveCalifornia.com said voters in the state twice already have affirmed marriage as an institution created by God between man and woman.

“The 9th Circuit ruling to strike down man-woman marriage, by a Carter judge and a Clinton judge, is unfair to the voters, against our republic, against our democratic system, against the United States Constitution, against nature, and against God and His beneficial design of family,” he said at the time.

“It’s illogical and unconstitutional to claim that natural, unchangeable race and ethnicity is the same as sexual behavior. That’s not fair or true. Race and ethnicity are inherited, but science has never found homosexuality, bisexuality, or transsexuality to be inherited or unchangeable. Neither is this about commitment. As the divorce of leading anti-Prop. 8 lesbians Robin Tyler and Diane Olson demonstrates, the notion of homosexual ‘marriage’ is not really about ‘commitment,’ but is a political agenda forcing acceptance of homosexuality upon the children of America. Yet nothing is equal to marriage between a man and a woman. If you don’t have a man and a woman, you don’t have marriage.”

Reinhardt, who wrote the opinion, portrayed it in terms most favorable to the homosexual activists. He noted that before Nov. 4, 2008, the state constitution granted the right to marry to both same-sex and opposite-sex couples.

But that “right” had existed for only a few months, and not before during the more than a century of the state’s history.

The decision specifically was not addressed to the “broader question” of whether same-sex “marriage” should be the standard nationwide, instead addressing Proposition 8 alone.

Reinhardt also explained that the right to marry is guaranteed to same-sex couples under the Due Process Clause. He said Prop 8 also violates Equal Protection.

He also said that the word “marriage” is important, because the state in other terms grants same-sex duos a wide range of “marriage” rights.

“A rose by any other name may smell as sweet, but to the couple desiring to enter into a committed lifelong relationship, a marriage by the name of ‘registered domestic partnership’ does not,” he said.

He also relied on some far-reaching assumptions propounded by Walker, who said, among other things, “Proposition 8 relied on stereotypes to show that same-sex relationships are inferior to opposite-sex relationships.”

In a separate opinion, Smith wrote that states have the right to adopt such definitions.

He cited a Supreme Court opinion, Baker v. Nelson, where two men were denied a marriage license in Minnesota, sued and ultimately saw their complaint dismissed by the Supremes.

“The United States Supreme Court has not recognized that the fundamental right to marry includes a fundamental right to gay marriage,” he wrote. “Gays and lesbians are not a suspect or quasi-suspect class.”

Since Walker’s ruling, a campaign has been launched calling on members of Congress to defend marriage between one man and one woman as the foundation of civilization.

The effort is being championed by Kenneth L. Hutcherson, senior pastor and co-founder of Antioch Bible Church in Kirkland, Wash., who wrote in a column on WND saying the defense of marriage “is a movement I would be willing to lead.”

“Let’s be clear:” the letter tells members of Congress. “What we’re talking about is the federal government’s de facto imposition, on all 50 states, of a radical redefinition of marriage for the first time in more than 5,000 years – just to indulge the questionable demands of a miniscule segment of our population.

“Yet, who can deny that such frivolous experimentation with a foundational societal institution like marriage will inevitably result in serious, long-term ramifications to society as a whole? Loss of religious liberties of the vast majority of Americans as well as the complete breakdown of the family as we know it are just part of the fallout that will result,” it says.

Critics of Walker noted that there were several other circumstances, too, in which Walker’s behavior was described as anomalous:

“Before the trial even began, the 9th Circuit issued an extraordinary write of mandamus to overturn Chief Judge Walker’s order requiring proponents to turn over confidential internal communications…”

“Also before the trial … the Supreme Court of the United States issued an emergency stay … enjoining Chief Judge Walker from video recording and disseminating the trial proceedings…”

“Walker’s decision recognizing a right under the Federal Constitution for same-sex couples to have their relationships recognized as marriages conflicts with the judgment of every State and federal appellate court to consider the validity of the traditional opposite-sex definition of marriage. …”

Walker peremptorily held that gays and lesbians are a suspect class … even though all 11 Circuit Courts of Appeals … have repeatedly and squarely held to the contrary.”

“Walker refused to stay his judgment pending appeal. As a result, the 9th Circuit was forced to issue such a stay.”

WND reported earlier when two analysts contended that the judge’s actions irreparably tainted the case.

“He is either a direct beneficiary of his ruling in the case, or a person with a close-enough personal interest in the case that his impartiality might reasonably have been questioned,” wrote John C. Eastman, the Henry Salvatori Professor of Law & Community Service and a former dean at Chapman University School of Law.

“Not his sexual orientation, which alone would not require recusal, but the possibility that he could directly benefit from his ruling, raised the prospect that recusal may have been warranted,” he wrote in a San Francisco newspaper blog. “If the relationship was such that it gave Walker a financial or other interest in the outcome of the proceeding – and the ability to marry would certainly qualify – recusal would be mandatory and nonwaivable.”

Also concerned was J. Matt Barber, vice president of Liberty Counsel Action and associate dean at Liberty University School of Law.

“Back in February of 2010 after it became rumored that Judge Vaughn Walker is a practitioner of the homosexual lifestyle and that he has a long-term male lover, I was one of the few people to call for his recusal,” he told WND. “With Judge Walker’s recent admission that he does in fact practice homosexuality, I’ve been proven right. His ruling on the Prop 8 case should be immediately vacated.”

Barber explained that federal law is very clear in that the code of judicial conduct demands a judge remove himself if “the judge’s impartiality might reasonably be questioned” or when he “has a financial … or any other interest that could be affected substantially by the outcome of the proceeding.”

“By manufacturing from thin air a constitutional ‘right’ to same-sex ‘marriage,’ Judge Walker used his position on the bench to create for himself a new privilege that he previously did not have. It’s undeniable that he had an ‘interest that could be affected substantially by the outcome of the proceeding,’” Barber said.

Walker’s original 136-page ruling said, “Proposition 8 fails to advance any rational basis in singling out gay men and lesbians for denial of a marriage license. Indeed, the evidence shows Proposition 8 does nothing more than enshrine in the California Constitution the notion that opposite-sex couples are superior to same-sex couples.”

In his ruling, Walker also arrived at the following highly controversial legal findings:

“Religious beliefs that gay and lesbian relationships are sinful or inferior to heterosexual relationships harm gays and lesbians.”

“Rather, the exclusion exists as an artifact of a time when the genders were seen as having distinct roles in society and in marriage. That time has passed.”

“The gender of a child’s parent is not a factor in a child’s adjustment.”